Oh the luck - Irish get three strikes back - and a new music service too!

Eircom, the Irish internet service provider, has resumed its policy of cutting off the internet connection of customers who illegally share music online. The company had suspended its policy earlier this year but before this the company sent out about 1,000 warning notifications each week to people who were allegedly infringing copyright by illegally downloading music. Its “three strikes” policy allows customers three official warnings before their internet connection is suspended.

The move is especially interesting given that the Mr Justice Charleton, in Irish High Court, had (somewhat reluctantly) agreed with rival broadband supplier UPC in a battle against several record companies, ruling that internet service providers were not liable for a customer’s illegal downloading nor did Irish law provide any basis for a ‘three strikes’ approach. In an very impressive presentation on recent case law in this area at the Music and IP conference in London yesterday (8th December) 5RB barrister Christina Michalos explained that Mr Justice Charleton said that there was no injunctive relief available in Ireland in the matter and that Irish copyright legislation made ”no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright” - and that the powers of Irish courts did not extend to obligating an ISP to block access to file sharing sites. Despite this, Eircom has decided to resume the strategy it implemented a year earlier following an out-of-court settlement with the same companies. Stephen Brennan, Eircom’s managing director for consumers and small businesses said that as the country’s largest broadband provider, Eircom felt its method of warning internet users about their activities was the best compromise between music companies and internet providers. Before the suspension Eircom had not actually yet disconnected any customers’ broadband but it did have some on three strikes at the time of the High Court case.

Simultaneously Eircom has launched a new online legal service, MusicHub, which offers free and unlimited streaming to Eircom broadband customers along with deals for legally downloading music to personal computers offering a range of bundled download packages where the unit price for each track downloaded could be as low as 32 cents. Launching the new service yesterday, Eircom's Stephen Beynon said "MusicHub is a major development for Eircom in the online content space. We are the first and only internet provider in Ireland to offer online streaming as part of a music service. Customers will not find a greater selection of music across all genres anywhere else in Ireland from their broadband provider". Mr Brennan described it as the “carrot” part of the company’s carrot-and-stick approach to counteracting copyright infringement, with the three strike process agreed with record labels being the “stick”. An Eircom's statement stressed net suspensions was a "measure of last resort".

http://www.irishtimes.com/newspaper/ireland/2010/1209/1224285100549.html

EMI Records & Others v UPC Communications Ireland Ltd (2010) IEHC 377

Merely allowing others to infringe is not an infringement

Linsey Dawn McKenzie,
hiding behind a tree

Media C.A.T. Ltd v A to H [2010] EWPCC 17 is a series of eight actions brought against unidentified file-sharers who are alleged to have indulged in activity which infringes the copyright in ""5 Linsey Dawn McKenzie Films on Tape", said to be a pornographic film featuring an actress described by Wikipedia as being "known for her naturally large breasts".  In each instance Media CAT was applying for judgment in default under the Civil Procedure Rules, CPR r.12.4(1). In the particulars of each claim in each action, Media CAT asserted that it represented the owners or exclusive licensees of copyright works of a pornographic nature and maintained that the relevant defendant had been engaged in peer-to-peer file sharing which involved copyright infringement. Damages and an injunction were sought.

Sitting in the Patents County Court, Judge Birss QC refused all eight applications. Concluding that it would be inappropriate to give judgment in default, the judge observed that in three cases the defendant had filed a defence and in three others there was nothing to show that the proceedings had been served. While the defendants in the other two actions appeared to be in default the claims did not fall within r.12.4(1) since Media CAT was asking for an injunction as well as damages and the application should have been made under Part 23 of the Rules.

Obiter, Judge Birss QC considered the nature of the alleged infringing act and added:

" ... The claimant's right to bring these claims at all may be entirely solid but that does not emerge clearly from the statement of case. A key part of the plea of infringement rests on an assertion that "allowing" others to infringe is itself an infringing act, when it is not. There is no plea that the works qualify for copyright protection at all. ...

In all these circumstances, a default judgment arrived at without notice by means of an essentially administrative procedure, even one restricted to a financial claim, seems to me to be capable of working real injustice.

Peer to peer file sharing which involves copyright infringement is an important and serious matter and claimants with a proper claim are entitled to use the full machinery of the courts to enforce their rights. Default judgment is an important part of the court's armoury in order to ensure that defendants engage with the legal process properly but it would not be a significant burden on claimants in cases like these to be required to use the part 23 procedure in all such cases".

How times change. A hundred years ago, no plaintiff in copyright infringement proceedings would have dared confess to attempting to enforce rights in a pornographic work.  Even if the subject was not raised by the parties, the court might sua sponte deem a work obscene and decline to enforce copyright in it. See for example Glynn v Weston Feature Films [1916] 1 Ch 261.

BGH: Pearl diving in foreign waters

On December 1, this copyright enthusiast's favourite senate within the Bundesgerichtshof, the I. Zivilsenat, handed down its greatly anticipated judgment in the so-called “Perlentaucher” case, which concerns abstracts of book reviews. Sadly, the full version will be another couple of months coming, but the trusty BGH press office has provided us with a, well, abstract of the judgment, here http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2010&Sort=3&nr=54209&pos=0&anz=229.

To dive straight in, the claimants are two German newspapers, the Frankfurter Allgemeine Zeitung (FAZ) and the Süddeutsche Zeitung (SZ). They regularly publish book reviews in the feature pages of both their online and (how quaint!) paper editions.

The defendant, Perlentaucher Medien GmbH, runs an online culture magazine at www.perlentaucher.de. “Perlentaucher” is German for “pearl diver(s)” and is believed by me to refer to the defendant's activities of searching for literary gems or "cultural pearls" (right; not to be confused with cultured pearls, left) and presenting them to its avid readers. Among other things, the defendant makes available brief abstracts of book reviews published in the FAZ and SZ. The titles of the abstracts indicate the source of the original review. However, the abstracts often contain verbatim quotes of particularly expressive or significant sections of the original reviews. The defendant has licensed online book sellers amazon.de and buecher.de to make the abstracts in question available on their respective websites as well. FAZ and SZ contest that the defendant's actions, especially granting licences to third parties, constitute copyright infringement.

The BGH's response to those claims basically consists of the most standard of legal answers. Yes, well done, you've all guessed it: “It depends.” Fortunately, it did not completely leave us alone with that enigmatic judgment (enigma machine, right; presiding judge of the I. Zivilsenat, Prof. Dr. Joachim Bornkamm, left), but actually did care to elaborate. The crucial provision in the German Copyright Act (UrhG) is s. 24 (1). According to s. 24 (1) UrhG, an independent work created by free use of the work of another may be published and exploited without the consent of the author of the used work. That means that for instance the original book reviews published in the FAZ and SZ do not infringe the copyright in the books that are being reviewed. The same would seem to be true for a brief abstract of a lengthy book review. For, as the BGH points out, in literally all cases it is merely the linguistic expression and not the intellectual content of a book review that attracts copyright. Copyright generally permits one to summarise the contents of a literary work in one's own words, and to exploit that summary. In order to establish whether the abstracts in question infringed the claimants' copyright, therefore, it is necessary to establish to what extent the abstracts made use of original phrases (original in the copyright sense) from the original reviews.

Since the BGH was not satisfied that the facts had been properly established in the course of the appellate proceedings, the case was remanded to the Higher Regional Court of Frankfurt am Main (the ball is back in their court, so to speak). As there appear to be a number of abstracts with different ratios of quoted material, it will be interesting to see where the court draws the line between free use and infringement, and if the parties then accept that judgment or pay a second visit to the BGH. Watch this space, but better not hold your breath.

Downloads and levies: it's Double Dutch Day!

In "Copyright owners better off in a regime that allows downloading from illegal sources" this weblog reported on the 15 November ruling of the Court of Appeal of the Hague in Eyeworks v FTD. Today the IPKat posted the an English translation of the judgment in full (here) together with a short note from Dutch copyright practitioner and scholar Dirk Visser.

Dirk has now been able to procure an English translation of an even more complex ruling, on some of the same issues and decided by the same court on the same day, in ACI Adam BV and others v Stichting de Thuiskopie and another (here).  Explains Dirk:

"Here is another decision by the same Court from the same day, parts of it are identical (on the private copying from an illegal source), but it is an entirely different case, between different parties, brought by the blank media industry against the home copying levy organisation in the Netherlands. This one is (even) more complicated.

The Court rules that downloading from an illegal source is permitted in The Netherlands -- and has to be compensated by ‘fair compensation’ (through levies or otherwise). The Court considers that this might be in violation of the Three-step test of article 5.5 of the Copyright directive, but also that an interpretation of Dutch national copyright law in line with the directive on this issue would result in an inadmissible interpretation ‘contra legem’".

Dirk feels disappointed that neither case got as far as a reference to the Court of Justice of the European Union and, in terms of clarifying the principles involved and ensuring that courts throughout the EU take the same line ie is quite right -- though a case can be made for saying that, if the Court of Appeal of the Hague could determine the issues before it without needing external help, it was right to do so.

D is for Digitize, Dispute and Drag it out

It was back in February that the US government said the Amended Google Book Settlement still didn’t come up to scratch – but that they remained committed to working with the parties to sort something out. Since then, silence, except for the quiet whirring of Google’s scanners copying books and today the announcement that Google ebooks are available from a new US-only Google ebook store.

In October 2009 New York Law School held a conference about the dispute and Settlement entitled ‘D Is for Digitize’. The papers delivered have now been published online here. It is welcome reading matter for those who are still pacing up and down, wondering whether the Settlement is going to be approved or rejected. The papers explore the Settlement from various angles including the counterfactual scenario (what if there had been no Settlement?), how the Settlement sits in the worldwide orphan works debate and the role of the Department of Justice in bringing the Settlement to a satisfactory conclusion.

Meanwhile in a cozy corner of a pub in Oxford, England…

Prof A: It’s maddening, the way there’s been no closure to the Google Books Dispute.

Prof B: Not so worried myself, old boy.

Prof A: You don’t mean you’ve been won over by the royalties you’ll be getting from ebook sales?

Prof B: Not really – no one’s going to buy my dreary out-of-date, out-of-print works. There is a reason why they went out of print, you know.

Prof A: Aren’t you worried that it’ll only be the Yanks who will get to read books licensed under the Settlement? I mean, it could lead to a brain drain – much better to go and study in the States than anywhere else.

Prof B: You’ve hit the nail on the head, old bean. Google University have just created a new chair of Orphan Trivia – and they’ve offered it to Yours Truly!

Last slice of the Lime: no ice, no fizz

Limewire is no more and the company has said that it will close its small (legal) download business and cease trading. In a statement, Team Lime said: "Given our current situation, plans to bring our separate, legal music service to market have been cancelled. The beginning of 2011 will mark the closing of LimeWire's New York office and cessation of business by LimeWire. We attracted some of the top talent from the technology community over the years to build our new music service. We'll be helping our team members commence their job search over the next few months".

But next on the radar of content owners may well be RapidShare which has attracted particular interest in Europe, notably in Germany, where the Regional Court of Hamburg ordered RapidShare to put in place filters that would stop users illegally sharing 148 specific text books in reponse to a claim by book publishers. It seems that RapidShare failed to comply and the publishers went back to court with the result that the court have now imposed a 150,000 euro fine on the tech company with the court saying that the company had "culpably failed to take reasonable examination and control measures. These measures include the utilisation of a word filter, which checks the file name during the uploading of files to the servers of [RapidShare] with regard to whether the author, the title, the ISBN number of the publisher may be contained in this name".

http://celebrifi.com/gossip/US-court-shuts-down-LimeWire-3818438.html

Right royal ruckus up over new Bollywood copyright proposals

It seems that Indian film music composers may have to look for other avenues of employment if Bollywood film producers make good their threat and stop producing films in protest against proposed new copyright legislation – or find music from other sources. The Times of India reports that a Parliamentary Standing committee has recommended that the Copyright Amendment Bill 2010 should provide that film producers give authors, lyricists and composers an ongoing royalty from a film – and shared ownership.

Award winning producer Yash Chopra, who along with other film producers had made several presentations before the Committee said, "Ours is the entertainment business, yet like the alcohol or tobacco industry we have to pay huge taxes in the form of VAT, service tax and stamp duty. Now if the Copyright Bill is passed it will be the end of us as it will be very difficult to make films." Echoing this was producer Boney Kapoor who told the Times of India: "We are already burdened with so many taxes and if this is implemented it would be difficult to sustain ourselves”. Another producer said that if the revisions are implemented iit will only lead to “the death of Bollywood music” as it will not be economically viable for producers to have India music in their films.

The planned proposal is to protect the rights of authors (scriptwriters, composers and lyricists) who have in the past usually been paid a fixed fee by producers, who then controlled all rights in the music and lyrics - in effect a “buy out” of the author’s rights. The revision would mean that although the producer of the movie will be the first owner of the music when used as part of cinematograph work, the lyricist or composer will be first owner for all other purposes. The producers are not happy with this and Chopra said "If we will be left with no rights how will we monetise any of the property of a film and give them royalty?" adding, "In 2013, we are celebrating 100 years of Indian cinema but looks like by then we may be writing our obituaries." Perhaps more tellingly, Ameet Naik who represented the producers' body before the panel said, "The bill in its present form is tilted towards established authors. Producers will think twice before hiring new ones and there is every chance even if they get work [they] will not be given credit" with (I imagine) the film companies claiming to be the ‘author’ and therefore owning the copyright – not too unlike the US and UK music industries in the fifties and sixties when managers, record label executives and publishers often put themselves down as co ‘authors’ to receive an ongoing share of song writing royalties. Chopra added to this saying "Several composers and writers just want the money and are not bothered about credit, all they insist is to just give them one amount and that is it” adding that the changes would dramatically alter the Bollywood funding model and leave producers exposed in recouping their investments. Chopra said "Most songs in films abroad are taken from albums, which is totally different from how music is made in India. Music for any film is a team contribution and not an individual's work. How can they be first owners?" It seems that an alternative new business model might be one where the film producers set up ‘independent’ record labels and music publishers – acquiring copyrights from songwriters in a different way, which they can then of course can still control and feed into their films.

Understandably, Lyricists, composers and singers welcomed the news with producer-director-composer Vishal Bharadwaj saying “As for the law favouring composers and lyricists, I am an artiste first and I feel it is a historical and large-hearted decision. At least this will secure their future now. So many of my songs have been used in serials and commercials but nothing comes to me” adding “Composers, writers and lyricists get royalty abroad, so why not we in India".


Read more: http://timesofindia.indiatimes.com/city/mumbai/Royalty-recommendation-to-lyricists-composers-not-music-to-producers-ears/articleshow/7050253.cms

Da Bears, Da Dance, Da Lawsuit

Da Bears.  Perhaps one of the most famous phrases in 1980s American football.  The Chicago Bears had a lot of cultural staples that decade, Mike Ditka, Refrigerator Perry and the 1985 Superbowl Shuffle (video available here).  But as the 25th anniversary of the Superbowl Shuffle approaches, there’s trouble in the Windy City.

Photo credit: “It’s Like Making a Trip
to Mecca if You’re a Bears Fan”
CC-BY-SA Senor Codo

Julia Meyer, owner of the copyrights to the video and song Superbowl Shuffle has brought suit against cable network Viacom, owner of MTV and VH1.  Meyer alleges copyright infringement under the US Copyright Act, misrepresentation under the Lanham Act, deceptive trade practices under Illinois state law and unjust enrichment.  (Full brief pdf)
What did Viacom do?  It played the Superbowl Shuffle video on MTV and VH1, not the whole video, but clips of it.  The shortest clip, 16 seconds, the longest, a minute and a half.
According to Meyer,

“The Defendants’ conduct significantly damaged the market for the ’85 Bears Shuffle Video. [Because now that people have seen it, they’ll know better than to buy it?]  The 25th Anniversary of the ’85 Bears Shuffle Video will take place during late 2010 and early 2011, which has created additional interest from the public in the ’85 Bears Shuffle Video.” [What’s more likely to create additional interest is that the Bears could make it to the Superbowl this year.  They’re currently first in their division, just ahead of the Green Bay Packers.]

Copyright Infringement

Meyer’s claims that by airing the Superbowl Shuffle clips on MTV and VH1, Viacom’s actions were “willful and deliberate, and in utter disregard for Meyer’s rights.”
All I can do here is speculate.  Once upon a time, MTV and VH1 actually played music videos, full music videos, all of the time.  That suggests that the Networks are familiar with the standard process for licensing videos and would not have aired the videos without going through that standard process.  (Unfortunately, I am not familiar with the standard process and have no idea if there is any sort of set compulsory licensing in place for music videos or if each video’s airing must be negotiated with the rightsholder.)
On the other hand, most of the videos MTV and VH1 show are produced and owned by major record labels.  This video is different.  It is not owned by a label, but by a entrepreneur who licenses the video via a company in Illinois.  Did Viacom try to take advantage of this situation by airing the video without going through the normal licensing practice?  The brief filed by Meyers gives us no information about any relevant background facts in this area.

Deceptive Trade Practices and Unfair Competition

The claims under the Lanham Act and Illinois State Law (815 ILCS 510/2) are similar.  Meyer and co-plaintiff Renaissance Marketing Corporation alleges that by showing clips of the Superbowl Shuffle on VH1’s program One Hit Wonders and MTV’s MTV News, Viacom engaged in “unfair and deceptive trade practices in that it likely caused confusion and mistake by the public.” 
At first, this sounds pretty ridiculous.  How would the public confuse a football team with some cable channels?  Would the public really think that the airing of the videos means the Chicago Bears are endorsing VH1 and MTV?  But the alleged confusion isn’t over affiliation or endorsement.  Meyer’s claim is that the public will be mislead into believing that she authorized the use of the video on the programs.
It’s possible viewers believe the owners of videos approve the playing of their videos.  But I wonder how realistic it is that the public would believe that for the video uses at issue here.  The MTV clip was part of a news show including interviews with members of the 1985 Chicago Bears team.  Does the public assume permission is granted whenever a very brief (40 seconds in this case) clip appears on the news as part of a story?  And the real question, would the public assume permission is given by the video owners for videos that appear on VH1’s One Hit Wonders?  Being known as a one-hit-wonder isn’t usually a good thing.  The public might assume that if specific permission were needed, there wouldn’t be any videos on the show.
The deceptive practices and likelihood of confusion claims are plausible but tenuous at best.  My guess is the case settles; I’ll be surprised if it goes to trial.